FERPA: The Ever-Changing Federal Statute (1) | American School Counselor Association (ASCA)
The Family Educational Rights and Privacy Act (FERPA) changes with U.S. Supreme Court cases, new statutory acts such as the USA Patriot Act, tragic school events, social landscape changes and evolving technology. FERPA’s primary purpose is to ensure parents’ have the right to view their children’s education records, to seek to amend inaccurate information in the records and to decide, within certain parameters, which entities or individuals can access their child’s records.
Obviously school counselors don’t want to be in charge of education records. In an April 2013 survey of ASCA members, 65 percent of the respondents said the school counselors in their school were not in charge of receiving and sending education records. Even though the majority of school counselors are not responsible for education records, as an advocate and member of the school community, school counselors want to know that their school is complying with FERPA. However, when changes are made to FERPA school counselors are sometimes left out of the information loop. A case in point is the latest change to FERPA, the Uninterrupted Scholars Act (2012), which became law in January 2013. Only 8 percent of the survey respondents indicated their school district had informed them about the change.
Case workers: In January 2013, FERPA was amended to include the Uninterrupted Scholars Act, which permits schools to disclose a student’s education records, without parental consent, to a representative of a state or local child welfare agency or tribal organization who has the right to access a student’s case plan (as defined and determined by the state or tribal organization), is engaged in addressing the student’s education needs and is authorized by the agency or organization to receive such records, when such agency or organization is legally responsible (in accordance with state or tribal law), for the care and protection of the student. Under the Child Abuse Protection and Treatment Act, Child Protective Services workers have had access for decades to all school records without prior written parental consent if they are investigating a case of child abuse, neglect and maltreatment. Now with the Uninterrupted Scholars Act foster care case worker also have access.
Peer grading: Mrs. Shubuta complains to you that her child is being humiliated and that his privacy rights violated because his teacher has the students exchange papers to grade and the students then call out grades for recording. Her child has serious learning difficulties, and his grades are always very low. She says her lawyer has explained that FERPA rights are violated because his grades are education records. Is her lawyer right?
In the 2002 Supreme Court case of Owasso Independent School District v. Falvo (2002), the court decided homework assignments, tests and the grades assigned to them are not, strictly speaking, “maintained” by an educational agency or institution at that point and therefore fall outside the definition of education records. “A student’s interim tests and homework assignments are not highly personal matters worthy of constitutional protection.” Once the grades are reported to the teacher and they are recorded in the teacher’s grade book, then the grades are “maintained” records, with grade books as education records only in limited circumstances. On Jan. 8, 2009, the USDOE enacted changes to FERPA regulations codifying the Owasso v. Falvo case. Education records do not include peer-graded papers before they are collected and recorded by a teacher.
However, FERPA doesn’t prevent you from advocating for students in cases where you feel the student may be suffering in some way. You could advocate for different grading practices that still save the teacher time but create a safer, more respectful environment for students. A school counselor-led brainstorming session might develop ways to save time in grading without hurtful practices.
Case notes: Not all the information collected and maintained by schools and school employees about students is subject to the access and disclosure requirements under FERPA. One of the six categories exempt from the definition of “education records” under FERPA is records made by teachers, supervisors, school counselors, administrators and other school personnel that are kept in the sole possession of the maker of the record and are not accessible or revealed to any other person except a temporary substitute for the maker of the record. A sole-possession record is a memory jogger note, not your official case records, and only memory joggers fall under sole-possession records.
School counselors do not usually keep prolific notes, as the reality in the course of a school counselor’s day is that they do not have time to write detailed case notes. In an April 2013 survey of ASCA members, 83 percent of the respondents said they don’t keep detailed case notes on every student they see. Five percent don’t keep notes at all, and only 12 percent consistently keep detailed, written case notes on the majority of the students they counsel. Often, case notes simply record the student’s name, time and a few details to jog the school counselor’s memory. However, when we do write case notes, in the case of a child-abuse situation, a student who is self-mutilating or a student who has suicidal ideations, we write with great care because we know our notes can be subpoenaed in most states, and parents can access the case notes if they are demanded.
Electronic case notes: What about those situations where all school employees are required to keep all notes about students in a centralized database, to which all faculty and administration have access? If you make notations in that central database with codes about why you’re seeing particular students, is that a breach of confidentiality? In many cases, yes.
FERPA guidelines delineate who may have access to education records without parental permission. School counselors and other educators who have legitimate educational interest (LEI) can access education records. Legitimate educational interest generally means you may access an education record for the purpose of: • Performing appropriate tasks within your job description; • Performing a task related to a student’s education; • Performing a task related to discipline; or • Providing a service or benefit related to the student or to the student’s family such as counseling, health care or job placement.
School counselors typically have LEI, not by virtue of their title, but as is the case for all educators by virtue of the context of their work meeting one of the above criteria. You can advocate that only those who have LEI (they meet one of the above criteria) be allowed to see your electronic notes. FERPA language supports you in this advocacy. According to the U.S. Department of Education, school districts must “use reasonable methods to ensure that school counselors, teachers and other school officials (including outside service providers) obtain access to only those education records – paper or electronic – in which they have legitimate educational interests. School districts must ensure that their administrative policy is effective and that they remain in compliance with the legitimate educational interest requirement for accessing records. In particular, if a parent or eligible student alleges that a school official obtained access to the student’s records without a legitimate educational interest, the burden is on the district or institution to show the school official had a legitimate educational interest in the information. Reasonableness depends ultimately on what are the usual and customary good business practices of similarly situated institutions, which, in turn, requires ongoing review and modification of methods and procedures as standards and technologies change.”
Approximately 30 percent of the ASCA members who responded to the April 2013 survey said they keep electronic case notes, and the majority of these notes are in compliance with FERPA. However, the school districts of the 5 percent who said “anyone with LEI can see my case notes” are not in compliance. Not every educator in the school will meet one of the four criteria for every student a school counselor sees. The school districts of the 9 percent and 16 percent that are discriminating about who actually should have access to the school counselor’s electronic records are, therefore, in compliance. FERPA helps you advocate for student confidentiality as it says school districts must “use reasonable methods to ensure that school counselors, teachers and other school officials obtain access to only those education records – paper or electronic – in which they have legitimate educational interests.”
Carolyn Stone, Ed.D., is a professor, University of North Florida and ASCA’s ethics chair. She can be reached at [email protected]. Contact the author for references to this article.
In an April 2013 survey of ASCA members, respondents said:
If you keep electronic records can others who have legitimate educational interest (LEI) in your school enter the student management system and see what you have written in your case notes? • Yes, anyone with LEI can see my case notes: 5 percent • Yes, but only the educators with LEI who are directly working with the student such as the student’s teacher and administrators: 9 percent • No, no one can see my records unless I give them access as they are password protected: 16 percent • Not applicable: 70 percent